5 N.H. 467 | Superior Court of New Hampshire | 1831
With respect to the indentures between Stevens and Woods, we take it to be a settled rule of law, that where there is a recital in a deed stating the views and objects of the parties, and this is followed by a grant in general terms-, in order that the real intention and meaning of the parties may prevail in the construction of the instrument, the general words may be limited by the recital. Now, in this case, it is stated in the recital, that Stevens had bought a certain mill and mill privilege, and contemplated obtaining a greater head of water than was then used, and might raise the old dam or build a new one, higher than the old one then was, which might flow Wood’s land. It is then stated, in express terms, that to effect these purposes the grant is made. Nothing can be clearer, than that the dams contemplated by the parties, were to be on the spot mentioned in the indentures.
The occasion of the contract, and the views and intentions of the parties being thus clearly disclosed in the recital, we have no doubt that the general terms in which the grant is made, are limited and restrained by the recital. The contract cannot, in our opinion, by any fair construction, be made to extend to a dam erected in another place, and for a purpose widely different from any thing that could have been contemplated by the parties to the indenture. This construction of the instrument is strongly fortified by the consideration that the construction, for what the respondents contend, would render the recital in the indentures idle, useless, and unmeaning.
As to the damages, the corporation was authorized by the act to make a canal along the course of the Nashua river, and to build dams across the river, and to make towing paths upon its banks. This could not be done with out-taking, for the purpose, the lands of individuals, nor without erecting works that might affect those lands ;
Such a provision ought to be so construed, without doubt, as to afford a full and complete remedy to those entitled to redress. But on the other hand, care must he taken in giving a construction to the act, to protect the corporation from all needless and vexatious expense and trouble in the application of the remedy.
Individuals might be damaged under the act by having their lands taken for the canal, or for towing paths, as well as by having their lands flowed, by reason of dams erected by the corporation ; and the same remedy is given in all cases. And the real question is, whether this provision was intended to give a remedy in all these cases, for they all stand on the same ground, for the damages actually sustained from time to time as they might arise ; or whether it was intended to give a remedy, at once, to those whose lands might be affected by the works of the corporation, for the damage sustained by having their property subjected, perpetually, to the incumbrances laid upon it by the corporation under the act ?
We are, on the whole, of opinion, that the provision is to be understood in this last sense. The works of the corporation are, without doubt, intended to be permanent, and so far as they affect the lands of individuals, may well be considered as perpetual incumbrances. We think that the damage to be recovered by an individual, is the damage he may sustain by having his property subjected to such an incumbrance. This construction gives to those who are injured, a better remedy to obtain all which in equity and justice ought to be obtained, than any other construction. If land be taken for a canal, or for a towing path, or be flowed, the full value of the land to the owner, in every point of view, may be recovered. The damages should be estimated liberally, and every
It has been said in the argument, on the part of the petitioner, that the future damages cannot be estimated, and that the dam may be discontinued. With regard to the damages, there is no more difficulty in estimating those resulting from having lands subjected to these in-cumbrances, than there is in estimating the damages resulting from any other kind of incumbrance,. The assessment of damages for a breach of a covenant against incumbrances is a matter of common occurrence. With respect to the discontinuance of the dam, such an event will not be presumed nor regarded in the assessment of damages ; and if it should happen, so much the better for the owner of the land, he will then have his land again free from the incumbrance. Indeed, we do not see that there is any just and legitimate purpose which this petitioner can have in view, which demands the construction of this provision for which he contends.
On the other hand, such a construction puts it in the power of those who may be injured, to make the remedy, in the highest degree, inconvenient and vexatious, and unnecessarily expensive to the corporation. The lands of many individuals may have been affected by the works of the corporation — and to be compelled to pay, from time to time, such damages as all those individuals might be disposed to demand, or be subjected to the trouble and expense of having the damages ascertained in the manner prescribed by the act, would be a burthen, which we think the legislature would not have imposed unnecessarily upon any corporation.
If the intention had been that the damages should be paid, from time to time, as they might be actually sustained, provision would, without doubt, have been made, at least, to ascertain and fix a sum to be paid at stated periods, subject to be increased or diminished, upon the application of the parties, as circumstances might re